Khan Abid v. Torture Claims Appeal Board and Another

HCAL 779/2018

[2021] HKCFI 924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 779 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 21 October 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of rival political party Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in Gujrat, Pakistan. After leaving school he concealed his religion to join the local police force, and became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”).

3.In 2008 PPP won the general election and became the ruling party. In mid-2009 the Applicant started to receive threats and harassments from those PPP supporters within the police force, and on one occasion in May 2009 he was beaten by them that he had to be taken to the hospital for medical treatment, and upon his discharge he discovered that he had been suspended by the police force due to some charges being made against him by those PPP supporters including his concealment of his Christianity.

4.Thereafter he continued to receive threats from PPP supporters, and after several occasions when shots were fired at his home, the Applicant fled to another town, but with threatening calls to his phone persisted, he felt it was no longer safe to remain in Pakistan, and so on 19 October 2009 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 6 May 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PPP supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that there was no reason for them to continue to have any adverse interest in him and in view of the fact that he was merely a PML(N) supporter without any official position in the party, that there is no evidence of any threats or persecution made against him over his Christianity, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for those local PPP supporters to locate him.

7.By a Notice of Further Decision dated 19 May 2017 the Director again rejected the Applicant’s claim upon considering his further representations which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 18 May 2016, and for which he attended an oral hearing on 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 15 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his alleged Christianity and threats received from PPP supporters while he was in the police force that it considered the credibility of his claim questionable and unreliable, and that in the absence of any evidence of any state or official involvement that state/police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 3 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely stated that he was not satisfied with their decisions in rejecting his claim but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 60 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 8^th day of April 2021.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1